Cox (Migration)

[2024] AATA 286

Cox (Migration) [2024] AATA 286 (31 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Levi Indiana Cox

REPRESENTATIVE:  Ms Chelsea Louise Glover (MARN: 1791268)

CASE NUMBER:  2213612

HOME AFFAIRS REFERENCE(S):          BCC2021/2026067

MEMBER:Scott Clarey

DATE:31 January 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

Statement made on 31 January 2024 at 10:10am

CATCHWORDS
MIGRATION – Working Holiday (Temporary) (Class TZ) visa – Subclass 417 (Working Holiday) – six months of “specified Subclass 417 work” – LIN 20/182 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.03; Schedule 2, cl 417.211

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2022 to refuse to grant the applicant a Working Holiday (Temporary) (Class TZ) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 October 2021. At the time the visa application was lodged, Class TZ contained one subclass, Subclass 417 (Working Holiday). The criteria for a Subclass 417 visa are set out in Part 417 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl.417.211(6), which requires an applicant for a third Working Holiday visa to have carried out six months of “specified Subclass 417 work” while being the holder of a second Working Holiday visa or of an associated bridging visa and on or after 1 July 2019 and to have been remunerated for that work in accordance with relevant Australian legislation and awards.

3. The delegate refused to grant the visa on the basis that the applicant did not meet cl.417.211(6) because the applicant had not carried out a six-month period of specified work in a regional area of Australia.

4. The applicant appeared before the Tribunal on 23 January 2024 (via teleconference) to give evidence and present arguments. The applicant was represented in relation to the review. The representative did not attend the hearing.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has carried out six months of specified Subclass 417 work in regional Australia.

   Has the applicant carried out specified Subclass 417 work?

7. Clause 417.211(6) requires that, at the time of the visa application, the applicant had carried out specified Subclass 417 work for a total period of at least 6 months. All of that work must have been carried out on or after 1 July 2019 and while the applicant held the second 417 visa or a bridging visa that was in effect and was granted on the basis of the application for the second Subclass 417 visa (made at a time when the applicant held the first Subclass 417 visa). The applicant must also have been remunerated in accordance with relevant Australian legislation and awards. ‘Specified Subclass 417 work’ is defined in reg 1.03 as work that was carried out in one or more specified areas of Australia and of one or more kinds specified by a legislative instrument made under reg 1.15FAA. Any work carried out before 14 November 2020 that was ‘specified work in regional Australia’ is taken to be ‘specified Subclass 417 work’ and the instruments specifying a place for the purposes of ‘regional Australia’ and kinds of work for ‘specified work’ that were in force immediately before 14 November 2020 continue to be in force as if they were made under reg 1.15FAA (see cls 9201(2)–(3) of Schedule 13 to the Regulations). The applicable instrument is LIN 20/182.

8. In coming to their finding that the applicant had not carried out three months of specified Subclass 417 work, the delegate found that the applicant had carried out 80 days of specified work, which was less than six months months.
   
   

9. According to the decision record, on 27 May 2022, the applicant was requested by the delegate to provide more information relating to his employment in Australia. The applicant did not provide a response to the delegate’s request. I note also that on 7 February 2023 the Tribunal wrote to the visa applicant inviting him to provide “information to support the claim that he/she meets the 'specified work' requirement in relation to the Subclass 417 visa application”. Although the applicant’s representative requested an extension of time to provide this information to the Tribunal (that was granted), no substantive response relating to ‘specified work’ undertaken was received from the applicant in relation to the Tribunal’s invitation. I note that in the Tribunal’s hearing invitation (sent to the applicant on 4 January 2024), the Tribunal asked the applicant to ‘provide all documents you intend to rely on to support your case by 16 January 2024’. The Tribunal did not receive any further documents relating to the applicant’s application prior to this deadline (or to date).

10. The Tribunal asked the applicant at the hearing why he had not responded to to these multiple invitations to provide information by both the Department and the Tribunal over several months. The applicant told the Tribunal that he believed he had provided to the Department relevant evidence of his specified work, but he did not provide any more specific detail about what evidence he had to support his claims or why he had not responded in specific instances to these invitations.

    FINDINGS

11. The Tribunal has considered all of the information on the Tribunal file, information contained in the Department file and the oral evidence received from the applicant at the hearing. Based on the information before me (that was discussed with the visa applicant at the hearing), the Tribunal finds that the applicant carried out:

    ·80 days of specified Subclass 417 work for Down to Earth Byron Bay during the subject period from 7 June 2021 to 25 October 2021.

12. As is noted by the delegate, the visa applicant provided to the Department what appear to be screenshots of electronic funds transfers from an unknown sender/source. Although these documents nominally show other payments being made into the applicant’s bank account (or into an account that purports to be his), it is not clear what these payments were for or who they were from. As such, the Tribunal is not satisfied based on the information before it that these payments were made for specified Subclass 417 work carried out during the subject period. The Tribunal does not accept these documents as evidence of specified work carried out by the applicant in relation to the visa criteria.

13. As noted above, the applicant was provided with several opportunities by both the Department and the Tribunal to provide further documentary evidence to support the claim that he met the 'specified work' requirement in relation to his Subclass 417 visa application. The applicant did not provide this information to either the Department or the Tribunal.

14. Having considered the information before it, and based on the findings made above, the Tribunal finds that the applicant carried out at most 80 days of specified work during the relevant period, well short of the minimum number of days in six months.

15. Therefore, the applicant has not carried out a period or periods of at least six months of specified Subclass 417 work. He does not satisfy cl.417.211(6)(b) which is a necessary criterion for the grant of the visa.

16. For the reasons above, the applicant does not meet the criteria for the grant of the visa.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Working Holiday (Temporary) (Class TZ) visa.

    Scott Clarey

    
    

    Member